GAO Bid Protests: An Overview of Time
Frames and Procedures
Kate M. Manuel
Legislative Attorney
Moshe Schwartz
Specialist in Defense Acquisition
December 2, 2014
Congressional Research Service
7-5700
www.crs.gov
R40228

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GAO Bid Protests: An Overview of Time Frames and Procedures

Summary
For purposes of federal law, a bid protest involves a written objection to the conduct of
government agencies in acquiring supplies and services for their direct use or benefit. Such
conduct can include (1) soliciting or otherwise requesting offers; (2) cancelling such solicitations
or requests; (3) awarding or proposing to award a contract; (4) terminating or cancelling a
contract due to improprieties involving its award; or (5) converting functions performed by
government employees to private sector performance. Bid protests are of perennial interest to
Congress, in part, because of the effects of protests on agency missions and operations.
Congressional interest can also be prompted by notable protests (e.g., SpaceX’s recent protest of
contracts for launch services), as well as by agency determinations not to follow any nonbinding
recommendations made by the Government Accountability Office (GAO) in deciding protests.
GAO is not the only forum with authority to hear bid protests involving federal acquisitions. The
procuring agency and the U.S. Court of Federal Claims can also hear bid protests. However, GAO
hears more protests than the Court of Federal Claims, the only other forum for which data are
readily available. Thus, its protest procedures—which can differ somewhat from those of the
procuring agencies and the Court of Federal Claims—are the focus of this report.
Legislation and regulations establish what issues may be protested with GAO and who may bring
a protest. As previously noted, by statute, GAO may hear complaints alleging violations of
federal procurement law in federal acquisitions. However, it is expressly barred by regulation
from hearing certain issues, such as challenges to small business size certifications. Any
interested party—an actual or prospective bidder or offeror whose direct economic interest would
be affected by the award of, or failure to award, a contract—may file a protest.
GAO is required by statute to provide for the “inexpensive and expeditious” resolution of
protests, “[t]o the maximum extent practicable.” Its practices permit “inexpensive” resolution, in
part, by enabling interested parties to represent themselves, rather than rely on attorneys. For
example, GAO does not require “formal briefs” or “other technical forms” of pleadings or
motions. It is also subject to statutory mandates that promote “expeditious” resolution, in part, by
requiring GAO to issue final decisions within 65 to 100 days after the protest was filed.
Filing a GAO protest may trigger an automatic stay of contract award or performance that lasts
for the duration of the protest. Such automatic stays are unique to bid protests filed with GAO and
help account for GAO’s popularity as a protest forum. Agencies may, however, override these
stays upon determining that urgent and compelling circumstances will not permit waiting for
GAO’s decision, or performance of the contract is in the best interests of the United States.
GAO may dismiss, deny, or sustain a protest. When a protest is dismissed or denied, the
procuring agency may generally proceed with the challenged action. In contrast, when a protest is
sustained, GAO may recommend specific actions (e.g., amending the solicitation, reevaluating
proposals). Such recommendations are not legally binding because the separation of powers
doctrine precludes legislative branch agencies, such as GAO, from controlling the actions of
executive branch agencies. However, the agency is required by statute to notify GAO if GAO’s
recommendations are not fully implemented, and GAO, in turn, must notify Congress.
Protesters disappointed with GAO’s decision can seek reconsideration from GAO. They can also
“appeal” GAO’s decision by filing a bid protest with the Court of Federal Claims.
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GAO Bid Protests: An Overview of Time Frames and Procedures


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GAO Bid Protests: An Overview of Time Frames and Procedures

Contents
Background ...................................................................................................................................... 2
Historical Development of Federal Bid-Protest Mechanisms ................................................... 2
Purposes of Bid-Protest Processes ............................................................................................. 3
The GAO Bid-Protest Process ......................................................................................................... 4
What Issues Can Be Protested with GAO? ............................................................................... 4
Who Can File or Be a Party to a GAO Protest? ........................................................................ 6
Procedures for the “Inexpensive” Resolution of Protests .......................................................... 6
Time Frames for the “Expeditious Resolution” of Protests ....................................................... 7
Initial Filings by Interested Parties ...................................................................................... 8
GAO Notice to the Agency ................................................................................................. 8
Agency’s Response and Protester’s Reply .......................................................................... 9
Issuance of GAO’s Decision on a Protest ........................................................................... 9
Time Frames for Optional Events in the GAO Bid-Protest Process ................................. 11
Automatic Stays of Contract Award or Performance ............................................................... 11
Agency Override of Bid-Protest Stays .............................................................................. 12
GAO and Agency Override Determinations ..................................................................... 14
Judicial Review of Agency Override Determinations ....................................................... 14
Basis and Effects of GAO Decisions ....................................................................................... 15
Denials, Sustainments, and GAO Recommendations ....................................................... 15
Legal Effect of GAO Recommendations .......................................................................... 16
Compliance with GAO Precedent or Recommendations as a Violation of the
Administrative Procedure Act ........................................................................................ 19
Reconsideration and “Appeal” of GAO Decisions .................................................................. 19
Reconsideration of GAO Decisions .................................................................................. 20
“Appeal” of GAO Decisions ............................................................................................. 21

Tables
Table 1. Time Frames of Important Events in the GAO Bid-Protest Process ................................ 10
Table 2. Examples of Procurements Involving “Urgent and Compelling Circumstances”
or the “Best Interests of the United States” ................................................................................ 13
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt
GAO Recommendations Per Fiscal Year .................................................................................... 17
Table 4. Comparative Number of Requests for Reconsideration and Protests Received
and Closed by GAO Per Fiscal Year ........................................................................................... 20

Contacts
Author Contact Information........................................................................................................... 22

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id protests—or written objections to certain actions, described below,1 taken by federal
agencies when acquiring supplies or services for their direct use or benefit—are of
B perennial interest to Congress. In some cases, this interest arises from reported increases
in the number of bid protests filed annually and the effects that such protests can have on agency
missions and operations.2 In other cases, congressional interest can be prompted by notable
protests,3 or by agency determinations not to follow any nonbinding recommendations made to
federal agencies by the Government Accountability Office (GAO) in bid protest decisions.4
GAO is not the only forum with authority to hear bid protests involving federal acquisitions.5 The
procuring agency and the U.S. Court of Federal Claims can also hear bid protests. However, GAO
hears more protests than the Court of Federal Claims, the only other forum for which data are
readily available.6 Thus, its protest procedures—which can differ somewhat from those of the
procuring agencies and the Court of Federal Claims—are the focus of this report.
The report is one of two providing Congress with background on the GAO bid-protest process. It
provides an overview of the time frames and procedures in a GAO bid protest, including (1) what
issues can be protested with GAO; (2) who can file or be a party to a GAO protest; (3) the
procedures for bringing and resolving GAO protests; (4) the time frames involved in GAO
protests; (5) the automatic stay of contract award or performance triggered by a GAO protest, as
well as the basis for agency overrides of automatic stays and judicial review of agency override

1 See infra “Background.”
2 See, e.g., Dietrich Knauth, GAO Sees 1st Decline in Bid Protests Since 2006, LAW360, January 3, 2014 (reporting that
the number of bid protests filed with the Government Accountability Office (GAO) had increased each year since
FY2006, before dropping by 2%, to 2,429 new cases, in FY2013). Because the filing of a protest with GAO may
trigger an automatic stay of contract award or performance, such protests can be said to “disrupt” agency operations.
See, e.g., Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under
Secretaries of Defense, August 24, 2007, available at http://acquisition.navy.mil/rda/content/download/5263/23838/
file/enhancing%20competition%201-18-2008.pdf (describing bid protests as “extremely detrimental to the warfighter
and taxpayer” and stating that “[t]he Defense Department must take steps in an effort to avoid these protest situations”).
3 See, e.g., Mike Gruss, SpaceX Formally Protests Initial EELV Block Buy Contracts, SPACENEWS, April 26, 2014,
available at http://www.spacenews.com/article/military-space/40343spacex-formally-protests-initial-eelv-block-buy-
contracts.
4 As discussed below (see “Legal Effect of GAO Recommendations”), the recommendations that GAO makes when
sustaining protests are not legally binding upon federal agencies. Agencies often comply with these recommendations.
However, in certain cases, they do not. For example, in 2011-2013, the Department of Veterans Affairs (VA) declined
to adopt the recommendations made by GAO in a series of 35 bid protests. GAO construed certain amendments made
to the Veterans Benefits Act in 2006 as requiring the VA to make certain purchases from veteran-owned small
businesses. See, e.g., Aldevra, B-405271; B-405524 (October 11, 2011); Kingdomware Techs., B-405727 (December
19, 2011); Crosstown Courier Serv., Inc., B-406262 (March 21, 2012). The VA disagreed, and refused to modify its
procurement practices. GAO noted the VA’s noncompliance in a November 13, 2012, report to Congress. See GAO
Bid Protest Annual Report to the Congress for Fiscal Year 2012, November 13, 2012, available at http://www.gao.gov/
assets/650/649957.pdf. However, shortly thereafter, the U.S. Court of Federal Claims found that the relevant provisions
were ambiguous and the VA’s interpretation was entitled to deference. See Kingdomware Techs., Inc. v. United States,
107 Fed. Cl. 226 (2012). The U.S. Court of Appeals for the Federal Circuit subsequently affirmed the Court of Federal
Claims’ holding. See Kingdomware, 754 F.3d 923 (Fed. Cir. 2014).
5 See 31 U.S.C. §3556 (“This subchapter does not give the Comptroller General [i.e., the head of GAO] exclusive
jurisdiction over protests, and nothing contained in this subchapter shall affect the right of any interested party to file a
protest with the contracting agency or to file an action in the United States Court of Federal Claims.”).
6 The Court of Federal Claims reported the filing of 102 cases in the “Contract/Injunction” category, which includes
“pre-award or post-award bid protest injunction cases” in 2013. See Table G-2A, U.S. Court of Federal Claims—Cases
Filed, Terminated, and Pending for the 12-Month Period Ending September 30, 2013, available at
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2013/appendices/G02ASep13.pdf.
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determinations; (6) the basis and effects of GAO decisions; and (7) reconsideration and “appeal”
of GAO decisions. A companion report, CRS Report R40227, GAO Bid Protests: Trends and
Analysis, by Moshe Schwartz, Kate M. Manuel, and Lucy P. Martinez, analyzes recent trends in
bid protests filed with GAO, particularly protests involving the Department of Defense.7
Background
Under federal law, a bid protest is a written objection by an “interested party”—a term whose
meaning is discussed further below (see “Who Can File or Be a Party to a GAO Protest?”)—to
the conduct of a federal agency in acquiring supplies or services for its own direct use and
benefit. This conduct can include
(A) [a] solicitation or other request by a Federal agency for offers for a contract for the
procurement of property or services.
(B) [t]he cancellation of such a solicitation or other request.
(C) [a]n award or proposed award of such a contract.
(D) [a] termination or cancellation of an award of such a contract, if the written objection
contains an allegation that the termination or cancellation is based in whole or in part on
improprieties concerning the award of the contract.
(E) [c]onversion of a function that is being performed by Federal employees to private sector
performance.8
Bid protests only became part of the federal procurement system in the early 20th century, more
than 100 years after the federal government began purchasing supplies and services. However,
Congress currently authorizes bid protests in three separate forums—the procuring agency, GAO,
and the Court of Federal Claims—in recognition of protests’ role in providing redress to
disappointed bidders and offerors and ensuring the integrity of the federal procurement process.9
Historical Development of Federal Bid-Protest Mechanisms
GAO first began hearing bid protests in the early 20th century on the theory that its statutory
authority to settle and adjust “all claims and demands” against the United States encompassed bid
protests.10 The federal courts did not hear protests at that time. Indeed, in its 1940 decision in
Perkins v. Lukens Steel Company, the Supreme Court found that actual or potential bidders who
had been disappointed in their dealings with the federal government lacked standing to challenge
alleged violations of federal procurement laws by government agencies.11 The Court reached this

7 For more on GAO generally, see archived CRS Report RL30349, GAO: Government Accountability Office and
General Accounting Office, by Frederick M. Kaiser.
8 31 U.S.C. §3551(1)(A)-(E).
9 The jurisdiction of the federal district courts over bid protests expired on January 1, 2001. See Administrative Dispute
Resolution Act of 1996, P.L. 104-320, §12(d), 110 Stat. 3875 (October 19, 1996).
10 The Budget and Accounting Act of 1921, P.L. 67-13, §305, 42 Stat. 20, 24 (June 10, 1921).
11 310 U.S. 113, 132 (1940).
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conclusion because it viewed these federal procurement laws as having been enacted strictly for
the government’s benefit, “for the purpose of keeping its own house in order,” and thus not
enforceable against the government by private parties.12 However, several decades later,
beginning with the 1970 decision by the U.S. Court of Appeals for the District of Columbia in
Scanwell Laboratories, Inc. v. John H. Shaffer, the federal courts came to hold that the
Administrative Procedure Act (APA) of 1946 authorized them to hear bid protests.13
Congress later expressly granted bid protest jurisdiction to GAO when it enacted the Competition
in Contracting Act (CICA) of 1984.14 GAO’s long history of handling bid protests, coupled with
several unique aspects of the GAO bid-protest process, most notably the stay of contract award or
performance that may result from the filing of a GAO protest,15 make it a primary locus for
federal bid protests.16
Purposes of Bid-Protest Processes
Although disappointed bidders or offerors would generally have no right to protest if Congress
did not provide for this right with either CICA or the APA, Congress has chosen to authorize
several judicial and other forums to hear bid protests for several reasons.17 First, protest
mechanisms ensure that entities doing business with the government can air their complaints
about government contracting processes and obtain relief. Without such mechanisms, certain
frustrations that citizens have with their government could remain unaddressed. Additionally,
absent such mechanisms, entities might be less willing to do business with the government, which
could diminish competition for government contracts and drive up prices.18 Second, protest
mechanisms enhance the accountability of procurement officials and government agencies by
highlighting and correcting mistakes and misconduct. This accountability helps to ensure the
integrity of the procurement system. If the government’s procurement system were perceived as
corrupt or ineffective, contractors might be less willing to compete for government contracts, and
the price at which the government acquires goods and services could increase. A corrupt or
ineffective procurement system could also waste taxpayers’ money.
These benefits of bid protests are not costless, however; protests can impede the prompt and
efficient acquisition of goods and services needed by the government. Particularly when contract
award or performance is stayed due to the filing of a bid protest, as may happen with GAO

12 Id. at 127.
13 424 F.2d 859, 865-69 (D.C. Cir. 1970). Although Congress enacted the APA in 1946, it was not until 1970 that the
federal district courts held that the APA gave them jurisdiction to hear bid protests.
14 CICA was enacted as part of the Deficit Reduction Act of 1984, P.L. 98-369, §§2701-2753, 98 Stat. 1175 (1984)
(codified, in part, at 31 U.S.C. §3556). Certain specific issues relating to the award of federal contracts are to be
protested to other agencies, rather than the bid-protest forums. Size certification determinations for small businesses,
for example, are to be protested with the Small Business Administration. See 13 C.F.R. §121.1001.
15 See “Automatic Stays of Contract Award or Performance.”
16 See supra note 6 as to the number of bid protests filed annually with the Court of Federal Claims. It is not known
how many protests are filed annually with the procuring agencies. However, this number may be not insignificant,
since some have expressed the view that protesting with the agency (as opposed to another forum) is a way to preserve
a good relationship with the agency whose actions are being challenged.
17 As previously noted, the procuring agencies and the Court of Federal Claims may also hear bid protests.
18 For more on the benefits to the government of competition in the source-selection process, see generally CRS Report
R40516, Competition in Federal Contracting: A Legal Overview, by Kate M. Manuel.
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protests,19 protests can delay agency procurement actions. Protests also require agency officials to
spend time explaining their conduct to disappointed bidders and offerors, and in defending their
conduct before judicial or other forums. Moreover, fear of possible protests may increase the time
and energy that agencies expend in documenting their procurement decisions. Congress has,
however, historically viewed the benefits of protests as outweighing these costs.
The GAO Bid-Protest Process
When it enacted CICA, Congress charged GAO with “provid[ing] for the inexpensive and
expeditious resolution of [bid] protests” to “the maximum extent practicable.”20 GAO has
attempted to meet these goals through the use of time frames and procedures partly prescribed by
statute and partly established by administrative rule making.21 These time frames and procures are
discussed below.
What Issues Can Be Protested with GAO?
Under CICA, disappointed bidders or offerors can protest to GAO about an “alleged violation of
... procurement statute or regulation” by a federal agency in (1) soliciting or otherwise requesting
offers; (2) cancelling such solicitations or requests; (3) awarding or proposing to award a
contract; (4) terminating or cancelling a contract due to improprieties involving its award; or (5)
converting functions performed by government employees to private sector performance.22 The
alleged violation may arise prior to contract award, as when a contractor claims that some aspect
of the solicitation would impermissibly disadvantage it in competing for the contract. Alternately,
the alleged violation may arise with the contract, as when a contractor claims that the government
failed to follow the rules for the competition or otherwise acted improperly in awarding the
contract to the protestor’s competitor(s). Starting in FY2008, under additional jurisdiction granted
to GAO by Congress, GAO may also hear alleged violations pertaining to agencies’ issuance of
task or delivery orders under multiple-award contracts,23 or contracting out under Office of
Management and Budget (OMB) Circular A-76.24 It can also hear protests involving
Transportation Security Administration contracts,25 which had formerly been excluded from GAO
review.
GAO regulations, however, bar GAO from considering certain issues, even when these issues are
implicated in the formation of a government contract. These issues include the following:
• disputes between a contractor and an agency regarding the terms and
performance of an existing contract;

19 See “Automatic Stays of Contract Award or Performance.”
20 31 U.S.C. §3554(a)(1).
21 Compare 31 U.S.C. §3554(a)(1) (establishing 100-day time frame for GAO decision) with 4 C.F.R. §21.2(a)(2)
(establishing that post-award protests must generally be filed within 10 days after the basis for protesting was known or
should have been known).
22 31 U.S.C. §3551(1)(A)-(E).
23 Task and delivery orders are awarded under existing contracts. They are not themselves contracts.
24 See Bid Protest Annual Report to the Congress for Fiscal Year 2012, supra note 4.
25 Id.
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• challenges to small business size standards and standard industrial
classifications;26
• issuance of or refusal to issue certificates of competency under Section 8(b)(7) of
the Small Business Act;27
• determinations to procure particular supplies or services through the Minority
Small Business and Capital Ownership Development Program (commonly
known as the 8(a) Program);28
• challenges to agency determinations that a prospective contractor is affirmatively
“responsible” for purposes of the award of a contract;29
• alleged procurement integrity violations which the protester did not report to the
agency responsible for the alleged violations within 14 days of discovering
them;30
• procurements by agencies that are not “federal agencies” as defined in Section 3
of the Federal Property and Administrative Services Act (40 U.S.C. §102);31
• awards or proposed awards of subcontracts, unless the agency awarding the
prime contract has requested in writing that subcontract protests be handled by
GAO as “non-statutory protests”;32
• the debarment and suspension of government contractors;33
• protests asserting that the protester’s proposal should not have been included or
kept in the competitive range; and

26 These issues are generally protested with the Small Business Administration (SBA).
27 The issuance of certificates of competency is part of the process of determining whether certain would-be
government contractors are “responsible.” For more on responsibility determinations, see CRS Report R40633,
Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, by Kate
M. Manuel.
28 For more information on the 8(a) Program, see CRS Report R40744, The “8(a) Program” for Small Businesses
Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues, by Kate M.
Manuel.
29 Federal agencies generally cannot award a contract without having determined that the contractor is affirmatively
“responsible” for purposes of the award of the proposed contract. See generally CRS Report R40633, Responsibility
Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, by Kate M. Manuel.
30 Such violations include the release of source selection information or contractor bid or proposal information by the
agency; undisclosed contacts between employees involved in procurements over $150,000 and bidders or offerors
regarding future employment; or employment by the contractor of former agency officials who were involved in
procurements or administration of contracts valued at $10 million or more within one year of their involvement. See 41
U.S.C. §§2101-2107.
31 This definition encompasses any executive agency or establishment in the legislative or judicial branch other than the
Senate, the House of Representatives, and the Architect of the Capitol (or any activities under the direction of the
Architect of the Capitol). GAO regulations further note that the acquisitions of the U.S. Postal Service, the Federal
Deposit Insurance Corporation, and non-appropriated fund activities (NAFIs) are excluded from GAO’s protest
jurisdiction. 4 C.F.R. §21.5(g).
32 An agency can agree in writing to have other protests—known as “non-statutory protests”—decided by GAO. 4
C.F.R. §21.13(a).
33 For more on debarment and suspension, see CRS Report RL34753, Debarment and Suspension of Government
Contractors: A Legal Overview, by Kate M. Manuel.
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• decisions by “agency tender officials” regarding whether to file protests in
connection with “public-private competitions,” which are conducted to determine
whether functions formerly performed by government employees will be
contracted out or performed in house.34
Who Can File or Be a Party to a GAO Protest?
By statute, a GAO bid protest may be filed by any interested party,35 or any “actual or
prospective bidder or offeror whose direct economic interest would be affected by the award of
the contract or by failure to award the contract.”36 This focus upon direct economic interest in
determining who is an interested party means that a larger number of contractors can generally
bring pre-award protests than can bring post-award protests. Prior to contract award, contractors
who are considering bidding or offering generally qualify as interested parties. In contrast, after
contract award only contractors who bid on the contract or submitted offers may qualify as
interested parties because only they are eligible for the award.37 Moreover, because of the focus
on direct economic interest, GAO may require that contractors both have bid or offered on the
contract and be next in line for its award if the protest is sustained for them to qualify as
interested parties.38 Given their lack of “direct economic interests,” concerned citizens are not
interested parties who may bring GAO bid protests. Subcontractors on federal contracts also
generally lack standing to bring a GAO protest unless the contracting agency has requested that
GAO hear such protests.
In addition to prospective or actual bidders or offerors, other parties to GAO bid protests include
the agency responsible for the alleged violations of federal procurement law and, potentially, one
or more intervenors. Intervenors enter protests to protect their status as awardees or potential
awardees. When the contract has not yet been awarded, GAO regulations permit all bidders or
offerors who “appear to have a substantial prospect of receiving an award if the protest is denied”
to intervene.39 This means that, when the contract has been awarded, only the winning bidder or
offeror may generally intervene.
Procedures for the “Inexpensive” Resolution of Protests
GAO has adopted various regulations and practices to ensure that it resolves protests
“inexpensively,” as required by statute. Among other things, it increases the feasibility of
interested parties filing protests on their own behalf, without legal representation,40 by providing

34 4 C.F.R. §21.5(a)-(k). For more on public-private competitions, see CRS Report RL32833, Sourcing Policy: Statutes
and Statutory Provisions, by Elaine Halchin.
35 31 U.S.C. §3553(a).
36 31 U.S.C. §3551(2)(A). Interested party is defined somewhat differently for purposes of challenges involving public-
private competitions. See generally 31 U.S.C. §3551(2)(B).
37 GAO, Office of General Counsel, Bid Protests at GAO: A Descriptive Guide 6 (9th ed. 2009), available at
http://www.gao.gov/decisions/bidpro/bid/d09417sp.pdf.
38 But see Arora Group, B-288127 (September 14, 2001) (recognizing a bidder whose proposal was ranked fifth as an
interested party because its protest challenged the agency’s application of the evaluation criteria in general and, if
successful, could have placed the contractor in line for the award).
39 4 C.F.R. §21.0(b)(1).
40 Bid Protests at GAO, supra note 37, at 4. However, only attorneys admitted under protective orders are permitted to
see another company’s proprietary information, or the agency’s source-selection-sensitive information, during a GAO
(continued...)
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that “[n]o formal briefs or other technical forms of pleading or motion are required.”41 Rather, for
GAO to consider a protest, a protestor need only
• identify the contracting agency and the solicitation or contract number;
• set forth a detailed statement of the legal and factual grounds of protest, including
copies of relevant documents;
• establish that the protester is an interested party making a timely protest; and
• state the relief requested (e.g., termination or re-competition of a contract).42
GAO also allows protesters to avoid the costs of traveling to Washington, D.C., where GAO is
located, by providing for the resolution of protests based upon documents filed by the protester
and the agency, as opposed to in-person hearings.43 Hearings are relatively rare in GAO protests.
Between FY2008 and FY2013, 3% to 12% of GAO cases annually entailed hearings.44 Moreover,
when held, hearings are generally less formal than hearings in federal court, with GAO and the
parties determining at a pre-hearing conference what procedures will be followed, as well as what
issues will be considered and which witnesses will testify.45
These factors, as well as the strict time frames for resolving GAO protests, described below, can
make GAO a less expensive venue in which to conduct bid protests than the Court of Federal
Claims. Protesters in the Court of Federal Claims are, in contrast, generally more likely to be
represented by attorneys and have hearings on their protests.46 Their protests can also take longer
to resolve.47 However, some commentators have wondered whether GAO’s comparatively
quicker and less formal procedures make GAO more likely than the Court of Federal Claims to
issue erroneous decisions.48 There have also been questions about whether GAO, with its
comparatively informal procedures, is the best forum for “awards involving complex systems or
services with values rising to the hundreds of millions of dollars or more.”49
Time Frames for the “Expeditious Resolution” of Protests
Federal statutes and regulations also provide for the “expeditious” resolution of protests by
requiring GAO to adhere to strict time frames, including resolving protests within 65 to 100 days

(...continued)
protest. Id. at 5-6.
41 4 C.F.R. §21.1(f).
42 4 C.F.R. §21.1(c)(1)-(8). Protesters may also, if they so wish, request protective orders, specific documents from the
agency, or a hearing before GAO. See 4 C.F.R. §21.1(d)(1)-(3).
43 4 C.F.R. §21.7(a) (allowing parties to a bid protest to request a hearing). See also 4 C.F.R. §21.7(c) (noting that,
although hearings are generally conducted in Washington, D.C., they can sometimes be conducted in other locations,
by telephone, or by other electronic means).
44 GAO Bid Protest Annual Report to Congress for Fiscal Year 2013, January 2, 2014, available at
http://www.gao.gov/assets/660/659993.pdf.
45 4 C.F.R. §21.7(b).
46 Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 6 WIS. L. REV.
1225, 1232 (2007).
47 Id.
48 Id. at 1241.
49 Id.
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after they are filed. These time frames help ensure that protesters receive prompt resolution of
their claims, and prevent bid protests from delaying the procurement of necessary supplies and
services by federal agencies.50 A protester who files a bid protest with the Court of Federal
Claims, in contrast, potentially could wait over 100 days before the court hears the case51 and
would not have the award or performance of the contract stayed for the duration of the protest, as
generally happens with GAO protests. The specific time frames for the key stages in the GAO
protest process are described below.
Initial Filings by Interested Parties
The time frames within which interested parties must, by regulation, file bid protests with GAO
depend upon the circumstances prompting the protest. Alleged violations that are apparent prior
to bid opening or the time set for receipt of initial proposals must be protested before the bid
opening or by the specified time.52 Other alleged violations must be protested no later than 10
calendar days after they become known, or should have become known, whichever is earlier,
unless the protest challenges “a procurement conducted on the basis of competitive proposals
under which a debriefing is requested and, when requested, is required.”53 Protests filed after
these deadlines are untimely, and GAO generally dismisses them.54 GAO generally considers
untimely protests only when the protester shows good cause for its late filing or when GAO
determines that the protest raises “issues significant to the procurement system.”55 However,
would-be protesters that miss GAO filing deadlines can sometimes still file bid protests with the
Court of Federal Claims, provided they meet the court’s timeliness requirements.56
GAO Notice to the Agency
Once a protest is filed with GAO, GAO is required by statute to notify the federal agency whose
contracting activities are being protested within one working day of receiving the protest.57 This

50 Bid Protests at GAO, supra note 37, at 6.
51 Metzger & Lyons, supra note 46, at 1232. In many cases, judges on the Court of Federal Claims hold some sort of
hearing on the merits within 60 to 90 days of the protest’s filing. The court does not always render its decision at the
same time as the hearing, however. The decision could come weeks or months later.
52 4 C.F.R. §21.2(a)(1). When the alleged improprieties did not exist in the initial solicitation, but were subsequently
incorporated into it, the protest must be filed prior to the next closing time for receipt of proposals following the
incorporation. Id.
53 4 C.F.R. §21.2(a)(2). A debriefing is a meeting between unsuccessful bidders or offerors and agency officials
wherein agency officials explain why the proposal of the bidder or offeror was not selected. When contractors protest
with GAO after an earlier protest with the contracting agency, that protest must also be filed with GAO within 10
calendar days of the agency’s denying this protest unless the agency had set a shorter time frame for protesters’
“appeal” of agency decisions to GAO. 4 C.F.R. §21.2(a)(3).
54 4 C.F.R. §21.2(b)-(c).
55 4 C.F.R. §21.2(c). In its January 28, 2014, decision in Motorola Solutions, Inc., GAO found that a protest was timely
when the record showed that the agency delayed furnishing the protester with information that was critical to its
argument; the protester diligently pursued this information; and the protester filed within 10 days of being provided the
information that had been improperly withheld. It is unclear whether and how the Motorola “exception” might be
applied in other circumstances.
56 But see Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (holding that a party that has the
opportunity to object to the terms of a government solicitation containing a patent error and fails to do so before the
close of bidding waives its right to raise the same objection in a bid protest).
57 31 U.S.C. §3553(b)(1). The protester must also submit a copy of the protest to the agency within one working day of
filing the protest with GAO. 4 C.F.R. §21.1(e).
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notice is important for two reasons. First, the agency’s receipt of the GAO notice often marks the
beginning of an automatic stay of the award or performance of the contract. This is because,
under CICA, federal agencies which have been notified of GAO bid protests that were filed
within 10 days of contract award (or within 5 days of a debriefing) may not award or authorize
performance of the contract until the protest is decided.58 Second, the agency’s receipt of GAO’s
notice marks the beginning of the 30-calendar-day period within which the agency must generally
respond to the GAO protest.59
Agency’s Response and Protester’s Reply
When responding to a GAO bid protest, the agency is required by statute to file a report with
GAO, generally within 30 calendar days of receiving notice of the protest.60 Under GAO
regulations, this report must include
the contracting officer’s statement of the relevant facts, including a best estimate of the
contract value, a memorandum of law, and a list and a copy of all relevant documents, or
portions of documents, not previously produced, including, as appropriate: the protest; the
bid or proposals submitted by the protester; the bid or proposal of the firm which is being
considered for the award, or whose bid or proposal is being protested; all evaluation
documents; the solicitation, including the specifications; the abstract of bids or offers; and
any other relevant documents.61
The agency can avoid filing this report only when it (or an intervenor) requests and is granted
dismissal of the protest before the report is due.62
After the agency’s report is filed, the protester then has 10 calendar days to submit written
comments on the agency’s report to GAO.63 If the protester fails to submit such comments, GAO
is required, by its own regulations, to dismiss the protest.64
Issuance of GAO’s Decision on a Protest
GAO generally is required to issue its final decision on a bid protest within 100 calendar days of
the protest’s filing.65 This time frame can be shortened to 65 calendar days if GAO determines,
either at the request of a party or upon its own initiative, that the protest should be treated under

58 31 U.S.C. §3553(c)(1) & (d)(3).
59 31 U.S.C. §3553(b)(2)(A). This 30-day response period can be lengthened when GAO determines, based upon the
agency’s written request, that the circumstances of the protest require a longer period. 31 U.S.C. §3553(b)(2)(B). The
response period can also be shortened to 20 days when GAO determines that the protest is suitable for “express”
resolution and notifies the agency of this determination. 31 U.S.C. §3553(b)(2)(C).
60 31 U.S.C. §3553(b)(2)(A).
61 4 C.F.R. §21.3(d).
62 4 C.F.R. §21.3(b).
63 4 C.F.R. §21.3(i). In protests decided under the “express option,” this time frame is reduced to five days. 4 C.F.R.
§21.10(d).
64 4 C.F.R. §21.3(i) (“The protest shall be dismissed unless the protester files comments within the 10-day period,
except where GAO has granted an extension or has established a shorter period in accordance with §21.10(e).”).
65 31 U.S.C. §3554(a)(1). GAO regulations also call for GAO to resolve timely supplemental or amended protests
within this time frame, if possible. 4 C.F.R. §21.9(c).
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the “express option.”66 GAO can also dismiss a protest that is frivolous—or that does not state, on
its face, a valid basis for protest—at any time,67 even before the agency files its report with
GAO.68 GAO can similarly issue a summary decision on a protest at any time.69
The importance that Congress attaches to the expeditious resolution of protests by GAO is
indicated by the fact that GAO is required by statute to report to Congress on any instance in
which GAO fails to issue its final decision on a protest within 100 calendar days of the protest’s
filing.70 Prior to FY2014, GAO apparently never had any such instances, and thus never had to
make such a report to Congress. However, the 16-day-long government shutdown at the
beginning of FY2014 prompted GAO to “extend the bid protest deadlines one day for each day
that GAO was shutdown.”71 280 protests were reportedly affected by this extension.72 Of these,
GAO reports that 241 were resolved within 100 days without any extension, and the remaining 39
were resolved within 100 “calendar days for the period that the government was funded” (i.e.,
100 days plus the 16-day extension).73
Table 1. Time Frames of Important Events in the GAO Bid-Protest Process
Event
Normal Time Frames
Express Time Frames
Filing of protest with GAO
Prior to the bid opening or the time
Prior to the bid opening or the time
set for receipt of initial proposals, in
set for receipt of initial proposals, in
the case of pre-award protests; no
the case of pre-award protests; no
more than 10 calendar days after the
more than 10 calendar days after the
protested conduct, in the case of
protested conduct, in the case of
post-award protests
post-award protests
Notice of the protest sent from
Within 1 working day of the protest’s
Within 1 working day of the protest’s
GAO to the agency
being filed
being filed
Agency’s report on the protested
Within 30 calendar days of the
Within 20 calendar days of the
procurement sent to GAO
agency’s receiving notice of the
agency’s receiving notice of the
protest
protest
Protester’s reply to the agency’s
Within 10 calendar days of the filing of Within 5 calendar days of the filing of
report
the agency report
the agency report
GAO’s decision on the protest
Within 100 calendar days of the
Within 65 calendar days of the
protest’s being filed
protest’s being filed
Source: Congressional Research Service, based on various sources cited supra “Time Frames for the
“Expeditious Resolution” of Protests.”

66 31 U.S.C. §3554(a)(2); 4 C.F.R. §21.10(b).
67 31 U.S.C. §3554(a)(4).
68 31 U.S.C. §3553(b)(3).
69 4 C.F.R. §21.10(e).
70 31 U.S.C. §3554(e)(1).
71 GAO Bid Protest Annual Report to the Congress for Fiscal Year 2014, November 18, 2014, at 2, available at
http://www.gao.gov/assets/670/667024.pdf.
72 Id.
73 Id.
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Time Frames for Optional Events in the GAO Bid-Protest Process
Similarly short time frames apply to optional steps in the GAO bid-protest process. Here, GAO
regulations require protesters to
• request expedited review under GAO’s “express option” within five calendar
days of filing the protest;74
• request a hearing “as early as possible in the protest process”;75
• request any additional documents whose existence or relevance becomes evident
only after the filing of the agency report within two calendar days of discovering
their existence;76 and
• file written comments on any hearing within five calendar days of the hearing.77
Automatic Stays of Contract Award or Performance
Under CICA, the filing of a bid protest with GAO may trigger an automatic stay (or
postponement) of contract award or performance. With pre-award bid protests, an agency may not
award the contested contract until the protest has been resolved.78 Similarly, with post-award bid
protests, the agency must withhold authorization of performance under the contract while the
protest is pending.79 If authorization has not been withheld, the agency must “immediately direct
the contractor to cease performance under the contract” until the protest is resolved.80
These bid-protest stays—commonly known as “CICA stays”—are a key aspect of the GAO bid-
protest process,81 which Congress mandated in order to strengthen GAO’s protest function.82
Congress did not provide for similar stays when bid protests are filed with the Court of Federal
Claims. Rather, protesters filing suit in the Court of Federal Claims must meet the court’s usual
requirements for temporary restraining orders or preliminary injunctions in order to affect a delay
of the agency’s procurement activities similar to that which generally occurs automatically when
a GAO protest is filed.83 This difference between bid protests at GAO and those at the Court of

74 4 C.F.R. §21.10(c).
75 Bid Protests at GAO, supra note 37, at 24.
76 4 C.F.R. §21.3(g).
77 4 C.F.R. §21.7(g). If the protester fails to timely file these comments, GAO must, under its own regulations, dismiss
the protest.
78 31 U.S.C. §3553(c)(1).
79 31 U.S.C. §3553(d)(3)(A).
80 31 U.S.C. §3553(d)(3)(A)(ii).
81 See, e.g., PGBA, LLC v. United States, 57 Fed. Cl. 655, 657 (2003) (describing the stays as “central” to the GAO
bid-protest process).
82 See, e.g., Competition in Contracting Act of 1984: H.R. Rep. No. 1157, 98th Cong., 2d Sess. 24-25 (1984) (explaining
that, prior to the enactment of CICA, many agencies would proceed with contract award during the protest, making
GAO’s decision irrelevant in the face of a contractual fait accompli).
83 A temporary restraining order bars a party to litigation from taking certain action(s) while the court decides whether
to issue a preliminary injunction. In deciding whether to issue a temporary restraining order or a preliminary injunction,
the Court of Federal Claims generally applies the same four-part test, looking at (1) whether the plaintiff is likely to
succeed on the merits of the case, (2) whether the plaintiff will suffer irreparable harm if the court withholds the
requested relief, (3) whether the balance of hardships to the parties favors the grant of the requested relief, and (4)
(continued...)
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Federal Claims has prompted some commentators to worry that the stays triggered by GAO
protests encourage contractors to “game the system.” Such commentators worry that contractors
knowingly file meritless protests with GAO in order to harass their competitors and delay awards
to them, or in the hopes of obtaining short-term contracts from the government during the
pendency of the GAO protest.84 These commentators also worry that the public interest, as
embodied in the contract to be awarded or performed, is neglected during the stay.85 However,
agencies’ authority to override CICA stays, discussed below, may diminish the significance of
such concerns. An override could permit an agency to proceed with contract award or
performance while a protest is pending.86
Agency Override of Bid-Protest Stays
CICA expressly authorizes agencies to override the automatic stay of contract award or
performance that may be triggered by the filing of a GAO protest when
• “urgent and compelling circumstances which significantly affect interests of the
United States will not permit waiting for the decision of the Comptroller
General”;87 or
• “performance of the contract is in the best interests of the United States.”88
Only “urgent and compelling circumstances” may be asserted when GAO bid protests are filed
prior to the award of the contract.89 However, either “urgent and compelling circumstances” or
the “best interests of the United States” may be asserted when GAO bid protests are filed after the
award of the contract.90
Beyond when the grounds may be asserted, few other differences are apparent between the
circumstances in which agencies can invoke “urgent and compelling circumstances” and those in
which they can invoke the “best interests of the United States,” as Table 2 illustrates.91 Some

(...continued)
whether it is in the public interest to grant the requested relief. See, e.g., Career Training Concepts, Inc. v. United
States, 83 Fed. Cl. 215, 218 (2008).
84 Metzger & Lyons, supra note 46, at 1239. A disappointed bidder or offeror who is the incumbent contractor could
obtain another 100 days’ worth of business from the agency by filing a protest with GAO because agencies often
continue incumbent contractors during the pendency of GAO protests. See 31 U.S.C. §3553(d)(3)(C); see also Keeton
Corrections, Inc. v. United States, 59 Fed. Cl. 753 (2004) (overruling the Bureau of Prisons’ override of a CICA stay
because the incumbent contractor could continue to provide correction services during the protest). Alternately, a
disappointed bidder or offeror who is not the incumbent contractor could obtain temporary contracts with the agency
during the protest.
85 Metzger & Lyons, supra note 46, at 1269.
86 See, e.g., Ameron, Inc. v. U.S. Army Corp. of Eng’rs, 607 F. Supp. 962, 974 (D.N.J. 1985) (describing the override
as a “built-in safety value to prevent undue harm” to the government).
87 31 U.S.C. §3553(c)(2)(A) & (d)(3)(C)(i)(II).
88 31 U.S.C. §3553(d)(3)(C)(i)(I).
89 31 U.S.C. §3553(c)(2).
90 31 U.S.C. §3553(c) & (d).
91 The key determinant of the agency’s success in invoking either grounds for overriding a CICA stay is the agency’s
record of the procurement and its decision making. The agency must be able to demonstrate that its override
determination was not arbitrary, capricious, or an abuse of discretion based upon the evidence in the record before it at
the time the determination was made. See, e.g., Protection Strategies, Inc. v. United States, 76 Fed. Cl. 225, 233-34
(continued...)
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courts and commentators have suggested, however, that an agency’s invocation of “urgent and
compelling circumstances” has more serious overtones and ought to receive more deference than
an agency’s invocation of the “best interests of the United States.”92
Any agency override, upon any basis, requires a written finding that grounds for the override
exist, and the agency is required by statute to notify GAO of this finding.93
Table 2. Examples of Procurements Involving “Urgent and Compelling
Circumstances” or the “Best Interests of the United States”
Urgent and Compelling Circumstances
Best Interests of the United States
•
Canine services for Army Special Forces in
•
Cockpit video recording systems recorders for F/A-18
Afghanistan: agency record showed adverse
aircraft: agency record showed that the agency
consequences, in the form of security breaches
conducted a proper evaluation in making the initial
at military installations, without the override; the
award; the override involved a one-year contract;
override was only for a bridge contract, with the
failure to override would interfere with the aircraft’s
agency planning a new solicitation within a year;
deployment to Bosnia and troop training; and the
and the only alleged harm to the protester was
public interest required that the troops be wel
the dissatisfaction of its employees.a
equipped.d
•
Maintenance & refuse services at Navy housing
•
Training services for a “top gun” school: protester
facility: agency record showed that services
alleged only speculative harm, claiming it would never
under the contract were essential to the health,
“get on base again” if it lost the protest; the agency
safety, and morale of military personnel; the
record showed that the contract was key to the
protester’s al egations of harm were speculative;
success of a weapons school whose operations had
and the public interest would be harmed if the
already been interrupted; and protecting national
protester, which was not a smal business, got an
security by ensuring adequate training was in the public
award set aside for a small business.b
interest.e
•
Maintenance & support services for Border
•
Spectrum management engineering services: agency
Patrol academy: agency record showed that the
record showed that performance under the protested
protester, who was the incumbent contractor,
contract was time-critical and that the winning offeror
had performed inadequately and could not
was only source with personnel qualified to perform
continue to perform during the protest; and time
the work.f
pressures required the award of a new contract.c
Source: Congressional Research Service.
Notes: Al examples are taken from federal court cases in which the courts found that the agency had acted
reasonably in overriding a CICA stay upon the grounds of “urgent and compelling circumstances” or the “best
interests of the United States.”
a. EOD Tech., Inc. v. United States, 82 Fed. Cl. 12 (2008).
b. Superior Servs., Inc. v. Dalton, 851 F. Supp. 381 (S.D. Cal. 1994).
c. Ramcor Servs. Group, Inc. v. United States, 185 F.3d 1286 (Fed. Cir. 1999).

(...continued)
(2007) (discussing reviewing courts’ focus upon agency records as they existed at the time of the override
determination); U.S. Army Acquisition Corps, CICA Automatic Stay Override Guide 2 (2004) (copy on file with the
authors).
92 Robert M. Hansen, CICA Without Enforcement: How Procurement Officials and Federal Court Decisions Are
Undercutting Enforcement Provisions of the Competition in Contracting Act, 6 GEO. MASON L. REV. 131, 155 (1997)
(“If an action is in the ‘best interest of the United States,’ it certainly must be ‘urgent and compelling,’ and if it is
‘urgent and compelling,’ it very likely will be in the country’s ‘best interest.’”).
93 31 U.S.C. §3553(c)(1) & (d)(3).
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d. Teac Am., Inc. v. U.S. Dep’t of the Navy, 876 F. Supp. 289 (D.D.C. 1995).
e. SDS Int’l Inc. v. United States, 55 Fed. Cl. 363 (2003).
f.
Alion Science & Tech. Corp. v. United States, 69 Fed. Cl. 14 (2005).
GAO and Agency Override Determinations
Although agencies are required by law to inform GAO of their override determinations, GAO
does not review the agency’s override determination and cannot reverse it. GAO lacks authority
and jurisdiction to keep the agency from proceeding to award or authorize performance of the
contract under the override. All that GAO can do is report on agency overrides to Congress, as it
routinely did in its annual reports until FY2002.94
Judicial Review of Agency Override Determinations
Outside of the agency itself, the only entity that can reverse an agency override determination and
reinstate the delay of contract award or performance that a GAO bid protest triggers is a federal
court—currently the Court of Federal Claims95—acting on the petition of the protester. To achieve
such an outcome, the court would have to grant the protester’s motion to restrain or enjoin the
government from awarding the contract or authorizing performance under it.96
Although courts once exempted agency determinations as to the “best interests of the United
States” from judicial review97 and gave substantial deference to agency determinations as to “best
interests” and “urgent and compelling circumstances,”98 the Court of Federal Claims has recently
enjoined agency overrides after subjecting the agency’s override determination to “searching

94 Compare GAO Bid Protest Annual Report to the Congress for Fiscal Year 2003, January 30, 2004, available at
http://www.gao.gov/special.pubs/bidpro03.pdf (not reporting on agency override determinations) with GAO Bid Protest
Annual Report to the Congress for Fiscal Year 2002, January 29, 2003, available at http://www.gao.gov/special.pubs/
bidpro02.pdf (reporting on agency override determinations).
95 Since Ramcor Services Group, Inc. v. United States, 183 F.3d 1286 (Fed. Cir. 1999), all such suits have been brought
in the Court of Federal Claims.
96 Because the case comes to the court on a motion for a temporary restraining order or preliminary injunction, the
court applies its customary test, examining (1) whether the protester is likely to succeed on the merits, (2) whether the
protester will suffer irreparable harm if the court denies the requested relief, (3) whether the balance of hardships favors
the grant of the requested relief, and (4) whether the requested relief would further the public interest. See, e.g., Career
Training Concepts, 83 Fed. Cl. at 218. The court’s analysis of whether the protester is likely to succeed on the merits,
in turn, focuses upon whether the agency’s override determination was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law” in violation of the Administrative Procedure Act (APA). See 5 U.S.C.
§706(2)(A) (scope of review under the APA); Superior Helicopter LLC v. United States, 78 Fed. Cl. 181, 186-87
(2007) (application of APA to agency overrides). In this analysis, the court focuses upon whether significant adverse
consequences would have resulted if the agency had not overridden the stay; whether the agency had reasonable
alternatives to the override; how the benefits of the override compare to its potential costs, including the possibility that
the protester might prevail in the GAO bid protest; and the impact of the override on competition and the integrity of
the procurement system. See, e.g., Reilly’s Wholesale Produce, Inc. v. United States, 73 Fed. Cl. 705, 711 (2006).
97 Topgallant Group, Inc. v. United States, 704 F. Supp. 265, 266 (D.D.C. 1988) (holding that determination of what is
in the “best interests of the United States” is committed to agency discretion and unreviewable). Topgallant was
followed by SDS International, Inc. v. United States, 55 Fed. Cl. 363 (2003); Dairy Maid Dairy, Inc. v. United States,
837 F. Supp. 1370 (E.D. Va. 1993); and other federal court decisions. The Court of Federal Claims rejected the logic of
Topgallant shortly after its SDS International decision in PGBA, LLC v. United States, 57 Fed. Cl. 655, 657 (2003).
98 See, e.g., Mark Dunning Indus., Inc. v. Perry, 890 F. Supp. 1504, 1511 (M.D. Ala. 1995) (stating that courts are to
apply a particularly deferential standard of review in determining agency rationality in override determinations); Stay,
Inc. v. Cheney, 940 F.2d 1457, 1463 (11th Cir. 1991) (same).
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inquiry.”99 Override determinations based on considerations of national security or national
defense sometimes receive greater deference from the court,100 but not even these considerations
guarantee victory for federal agencies.101
Basis and Effects of GAO Decisions
GAO is charged by statute with “deciding” all bid protests filed in accordance with GAO
regulations.102 When deciding a protest, GAO does not substitute its judgment for the agency’s, or
conduct de novo review of agency procurement activities and processes.103 Rather, GAO
considers only whether the agency complied with procurement statutes or regulations, as well as
had reasonable bases and adequate documentation, in its decision making.104
Denials, Sustainments, and GAO Recommendations
When GAO finds no violation of federal procurement statutes or regulations, it denies the protest,
leaving the agency free to award the contract, or authorize performance under it, barring a court
order to the contrary. When GAO finds a violation, however, it sustains the protest and may
recommend that the agency
• refrain from exercising its options under the contract;
• re-compete the contract;
• issue a new solicitation;
• terminate the contract;
• award the contract consistent with the requirements of statutes or regulations; or

99 The standard of “searching inquiry” is that from Citizens to Preserve Overton Park v. Volpe, 41 U.S. 402, 416
(1971). Commentators have noted that the Court of Federal Claims has been less deferential to agency override
determinations since 2006, when it issued its decision in Reilly’s Wholesale Produce. See, e.g., Kevin J. Wilkinson &
Dennis C. Ehlers, Ensuring CICA Stay Overrides Are Reasonable, Supportable, and Less Vulnerable to Attack:
Practical Recommendations in Light of Recent COFC Cases, 60 A.F. L. REV. 91, 93 (2006) (describing 2006 as a
“watershed” year).
100 See, e.g., SDS Int’l, 55 Fed. Cl. at 366 (stating that courts must give “due regard” to the interests of national defense
and national security when deciding bid protests); Maden Tech Consulting Inc. v. United States, 74 Fed. Cl. 786, 790
(2006) (“Where legitimate ‘interests of national defense and national security’ [are] asserted and established to the
court’s satisfaction, the court will not ‘reach the merits of whether [CICA] is violated.’”).
101 Compare Gentex Corp. v. United States, 58 Fed. Cl. 634, 655-56 (2003) (stating that assertions of national security
and national defense get more deference but the court still examines their merits) and Geo-Seis Helicopters, Inc. v.
United States, 77 Fed. Cl. 633, 650 (2007) (focusing upon national security concerns in tailoring injunctive relief, not
in deciding on the merits of the case) with Hughes Missile Sys. Co. v. Dep’t of Air Force, No. 96-937, slip. op. at 77
(E.D. Va. 1996), quoted in Hansen, supra note 92, at 154, (upholding an agency’s override without reaching the merits
of the plaintiff’s argument even though the agency conceded that it prepared its findings justifying the override
determination after the fact).
102 31 U.S.C. §3552(a).
103 See, e.g., Baker Support Sys., B-257054.2 (January 20, 1995).
104 See, e.g., 31 U.S.C. §3552(a) (agency compliance with statutes and regulations); McWane & Co., B-280374 (March
1, 1996) (agency evaluations having a reasonable basis and being consistent with evaluation criteria in the request for
proposals); Moheat Env. Servs., B-270538 (November 20, 1996) (agency evaluations having a reasonable basis and
adequate documentation even if otherwise inconsistent with the evaluation criteria).
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• implement any other recommendation that the “Comptroller General determines
to be necessary in order to promote compliance with procurement statutes and
regulations.”105
In deciding which of these options to recommend, GAO is required, by regulation, to consider all
the circumstances surrounding the procurement or proposed procurement.106 This includes (1) the
seriousness of the agency’s procurement deficiency, (2) the degree of prejudice to the other
parties and the integrity of the procurement system, (3) the extent of performance, (4) the cost to
the government, (5) the urgency of the procurement, and (6) the potential impact of any GAO
recommendation upon the agency’s mission.107
Along with its recommendations sustaining the protest, GAO can also recommend that the agency
conducting the procurement pay to the protester the costs of filing and pursuing the protest,
including reasonable attorneys’ fees; the fees for consultants and expert witnesses; and the
expenses of preparing the bid or protest.108 When GAO recommends that an agency pay costs, the
agency is required by statute to either pay the costs promptly, or report to GAO its reasons for not
paying.109 The agency is also required to attempt to reach an agreement with the protester on the
costs to be paid.110 If agreement cannot be reached, the protester can request that GAO
recommend to the agency an amount to be paid.111
Legal Effect of GAO Recommendations
Even when GAO finds that the agency violated federal procurement law and sustains the protest,
however, the agency is not legally required to implement the recommendations in GAO’s
decision. This is because GAO is a legislative branch agency and cannot constitutionally compel
executive branch agencies to implement its recommendations because of the separation of powers
doctrine.112

105 31 U.S.C. §3554(b)(1)(A)-(H). In determining what to recommend when it finds a violation of federal procurement
statutes or regulations, GAO is required by regulation to consider “all circumstances surrounding the procurement or
proposed procurement including the seriousness of the procurement deficiency, the degree of prejudice to other parties
or to the integrity of the competitive procurement system, the good faith of the parties, the extent of performance, the
cost to the government, the urgency of the procurement, and the impact of the recommendation(s) on the agency’s
mission.” 4 C.F.R. §21.8(b). Some commentators have asserted that this provision can help lessen the costs and delays
that GAO bid protests can impose upon the procurement process. See Robert S. Metzger & Oliya S. Zamaray, GAO’s
Neglected §21.8(b): How It Can Be Used to Address Concerns That Bid Protests Are Too Costly and Disruptive, 102
FED. CONT. REP. 219 (August 12, 2014).
106 4 C.F.R. §21.8(b).
107 Id.
108 31 U.S.C. §3554(c)(1)(A)-(B). The Court of Federal Claims, in contrast, has ruled that it does not have jurisdiction
over bid protest costs. S.K.J. & Assocs. v. United States, 67 Fed. Cl. 218 (2005).
109 31 U.S.C. §3554(c)(3)(A)-(B). When GAO recommends fees for consultants, expert witnesses, or attorneys, no
party other than a small business concern within the meaning of Section 3(a) of the Small Business Act may be paid
costs for consultant- or expert-witness-fees that exceed the highest rate of compensation for expert witnesses paid by
the federal government, or costs for attorneys’ fees that exceed $150 per hour, unless the agency determines that an
increase in the cost of living or a special factor justifies a higher fee. 31 U.S.C. §3554(c)(2)(A)-(B).
110 31 U.S.C. §3554(c)(4).
111 Id.
112 See Ameron, Inc. v. United States Army Corps of Eng’rs, 809 F.2d 979, 986 (3d Cir. 1986).
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Agencies typically fully adopt GAO recommendations, nonetheless, as Table 3 illustrates.
According to GAO’s annual reports to Congress, in only seven cases between FY2001 and
FY2011 did an agency decline to fully adopt GAO’s recommendations.113 The number of cases is
comparatively larger in FY2012 and FY2013. However, all but one of the cases reported in these
two years involved the same issue of statutory interpretation, and the U.S. Court of Appeals for
the Federal Circuit later affirmed a Court of Federal Claims’ decision rejecting the statutory
interpretation that GAO had relied upon in issuing these decisions.114
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt
GAO Recommendations Per Fiscal Year
(2001-2014)
Fiscal Year
Number of Cases
2001 0
2002 1a
2003 2b
2004 0
2005 0
2006 0
2007 0
2008 0
2009 1c
2010 3d
2011 0
2012 18e
2013 17f

113 It is important to note, however, that GAO reports are based on statutory requirements focused upon a procuring
agency’s implementation of specific recommendations regarding a particular solicitation, proposed award, or award
within a relatively short time frame (65 days). 31 U.S.C. §3554(b)(3). Thus, the reports do not necessarily capture
decisions whose underlying logic the executive branch repudiates at a later date. GAO issued such a decision, which is
not addressed in either its FY2008 or FY2009 reports to Congress, on September 19, 2008, in International Program
Group, Inc. B-400278; B-400308 (September 19, 2008). This decision was the first of several in which GAO construed
the Small Business Act to require that set-asides for Historically Underutilized Business Zone (HUBZone) small
businesses take “precedence” over set-asides for other categories of small businesses. See Mission Critical Solutions,
B-410057 (May 4, 2009). It was only after the second such decision that the Obama Administration indicated that it
would not accord HUBZone set-asides precedence over set-asides for service-disabled veteran-owned and 8(a) small
businesses because it disagreed with GAO’s construction of the Small Business Act. See Executive Office of the
President, Office of Mgmt. & Budget, Recent Government Accountability Office Decisions Concerning Small Business
Programs, July 10, 2009, available at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-23.pdf; Office
of Legal Counsel, Department of Justice, Permissibility of Small Business Administration Regulations Implementing
the Historically Underutilized Business Zone, 8(a) Business Development, and Service-Disabled Veteran-Owned Small
Business Concern Programs, August 21, 2009, available at http://www.usdoj.gov/olc/2009/sba-hubzone-
opinion082109.pdf. Congress later enacted legislation that amended the statutory text that formed the basis for GAO’s
recommendations. See Small Business Jobs Act of 2010, P.L. 111-240, §1347, 124 Stat. 2546-47 (September 27,
2010).
114 Kingdomware Techs., Inc. v. United States, 754 F.3d 923 (Fed. Cir. 2014), aff'g 107 Fed. Cl. 226 (November 27,
2012).
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Fiscal Year
Number of Cases
2014 1g
Source: Congressional Research Service using data from GAO.
a. Rockwel Elec. Commerce Corp., B-286201.6, B-286201.8 (August 30, 2001 and March 5, 2002).
b. Consolidated Eng’g Servs., Inc., B-291345, B-291345.2 (December 23, 2002); Symplicity Corp., B-291902
(April 29, 2003).
c. Mission Critical Solutions, B-401057 (May 4, 2009).
d. Rice Servs., Inc., B-402966.2 (September 16, 2010); Rice Servs., Inc., B-403746 (September 16, 2010); DGR
Assocs., Inc., B-402494 (May 14, 2010).
e. The U.S. Court of Appeals for the Federal Circuit later affirmed a Court of Federal Claims decision
rejecting the statutory interpretation that GAO had relied upon in issuing these decisions.
f.
Sixteen of the 17 decisions noted in FY2013 involved the same question of statutory interpretation that was
at issue in the cases in FY2012. The other case was Assisted Housing Services Corporation; North Tampa
Housing Development Corporation; The Jefferson County Assisted Housing Corporation; National Housing
Compliance; Southwest Housing Compliance Corporation; CMS Contract Management Services and the
Housing Authority of the City of Bremerton; Massachusetts Housing Finance Agency, B-406738,B-
406738.2,B-406738.3,B-406738.4,B-406738.5,B-406738.6,B-406738.7,B-406738.8 (August 15, 2012). The
agency here proceeded with the challenged actions, which were then protested to the Court of Federal
Claims. The Court of Federal Claims found for the agency. However, this decision was overturned on
appeal by the U.S. Court of Appeals for the Federal Circuit, which relied upon the same reasoning that
GAO had adopted. See CMS Contract Mgmt. Servs. Corp. v. United States, 745 F.3d 1379 (Fed. Cir. 2014),
rev’g 110 Fed. Cl. 537 (2013).
g. Asiel Enters., Inc., B-408315.2 (Sept. 5, 2013).
The high degree of agency deference to GAO recommendations arguably reflects the scrutiny that
Congress gives to agency decisions not to fully implement GAO recommendations. By statute,
agencies have 60 calendar days within which to fully adopt GAO recommendations. Any agency
that does not do so is required by statute to promptly notify GAO, which is then to notify four
congressional committees.115 Once aware that an agency is not fully adopting GAO’s
recommendations, Congress could exercise oversight or take legislative action compelling agency
compliance, if it so chooses.116

115 31 U.S.C. §3554(e)(1). The agency has five calendar days after the end of the 60-day period to notify GAO. The
congressional committees to which GAO reports this information are the Senate Committee on Homeland Security and
Governmental Affairs, the Senate Committee on Appropriations, the House Committee on Oversight and Government
Reform, and the House Committee on Appropriations. When notifying these congressional committees, GAO must
provide a comprehensive review of the challenged procurement and a recommendation as to whether Congress should
consider (1) private relief legislation, (2) legislative rescission or cancellation of funds, (3) further investigation by
Congress, or (4) other action to correct an inequity or preserve the integrity of the procurement process. 31 U.S.C.
§3554(e)(1)(A)-(B). GAO must also submit an annual report to Congress including, among other things, a summary of
each instance in which an agency did not fully implement a GAO recommendation. 31 U.S.C. §3554(e)(2).
116 See, e.g., Follow-Up Hearing on the U.S. Department of Veterans Affairs Service-Disabled Veteran-Owned Small
Business Certification Process: Hearing Before the House Committee on Veterans’ Affairs, November 30, 2011
(discussing GAO’s decision in the Aldevra bid protest, B-405271, B-405524 (October 10, 2011), which found that the
Department of Veterans Affairs is required to procure from veteran-owned small businesses in certain circumstances).
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Compliance with GAO Precedent or Recommendations as a Violation of the
Administrative Procedure Act
Compliance with GAO precedent or recommendations does not necessarily immunize the agency
from all future legal challenges to or liability for its actions. Since 2007, the Court of Federal
Claims has issued several decisions which suggest that an agency could be found to have acted
arbitrarily, capriciously, and in abuse of discretion, in violation of the Administrative Procedure
Act (APA), by following GAO precedents or adopting GAO recommendations. First, in Geo-Seis
Helicopters, Inc. v. United States, the court found that the Military Sealift Command violated the
APA by relying on GAO precedent allowing agencies to issue amendments that extend the bid
closing date after such date has passed.117 According to the court, this precedent was contrary to
the “late is late” rule of Federal Acquisition Regulation Section 52.215-1(c)(3)(ii)(A),118 and the
contracting officer’s reliance on this precedent “render[ed] arbitrary her decision to accept [the
winning bidder’s] first and second revised proposals.”119 Later, in Grunley Walsh International,
LLC v. United States, the court found that GAO’s interpretation of the statutory business-volume
requirement for bidders on embassy construction contracts was “irrational because it misread both
the actual language of the statute and the legislative history,” and the State Department acted
irrationally in adopting this interpretation.120
Although GAO decisions had been reversed in other cases,121 prior courts had not so explicitly
linked following GAO’s recommendations with violations of the APA.122 Geo-Seis Helicopters,
Grunley Walsh, and related cases123 thus highlight agencies’ dilemmas in complying with CICA
more clearly than previous cases did. Failure to fully implement GAO recommendations triggers
reporting to Congress and possible congressional oversight, while complying with certain GAO
recommendations that courts later determine were irrational could leave agencies vulnerable to
charges of having acted arbitrarily.
Reconsideration and “Appeal” of GAO Decisions
Much like agencies can decline to fully implement GAO recommendations that they are
dissatisfied with, protesters who are dissatisfied with GAO decisions can also potentially avoid

117 Geo-Seis Helicopters, 77 Fed. Cl. at 636-38 (Fed. Cl. 2007).
118 Id. at 638. See also 48 C.F.R. §52.215-1(c)(3)(ii)(A) (“Any proposal, modification, or revision, received at the
Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not
be considered.”).
119 Geo-Seis Helicopters, 77 Fed. Cl. at 646.
120 Grunley Walsh Int’l, LLC v. United States, 78 Fed. Cl. 35, 37-38, 44 (Fed. Cl. 2007).
121 See, e.g., Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48 (2005) (finding for the protester after GAO had
denied the protest); Blue DOT Energy Co. v. United States, 76 Fed. Cl. 783 (2004) (same).
122 Prior cases tended to avoid language suggesting agency “violations” of the APA even when finding such violations
in their analysis of the merits of the protest. See, e.g., Arora Group, Inc. v. United States, No. 04-366C, 2004 US
Claims LEXIS 267 (August 31, 2004) (using the protester’s language, which mentioned “violations” of the APA, only
when stating the plaintiff’s allegations and not when deciding the merits of the case).
123 See, e.g., Amazon Web Servs. v. United States, 113 Fed. Cl. 102, 106 (2013) (“[A]n agency’s decision lacks a
rational basis if it implements a GAO recommendation that is itself irrational.”) (internal citations omitted); Turner
Constr. Co. Inc. v. United States, No. 10-195C, 2010 U.S. Claims LEXIS 468 (July 8, 2010) (finding that GAO’s
recommendation lacked a rational basis and the agency was not justified in following it).
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them by requesting reconsideration from GAO, or “appealing” to the Court of Federal Claims.124
Disappointed agencies and intervenors can also request reconsideration from GAO, but need not
“appeal” to the Court of Federal Claims because the agency can always decline to follow the
GAO recommendations.
Reconsideration of GAO Decisions
Any party to a GAO protest can request reconsideration of GAO’s decision from GAO.125 Such a
request must be made within 10 calendar days after the basis for reconsideration is known or
should be known, whichever is earlier.126 Pursuant to its regulations, GAO does not consider
requests for reconsideration that lack detailed statements of the factual or legal grounds upon
which reversal or modification is sought, “specifying any errors of law made or information not
previously considered.”127 These regulations also provide for GAO to summarily dismiss any
reconsideration request that fails to state valid bases for reconsideration or are untimely.128
Filing a request for reconsideration with GAO does not stay contract award or performance like
filing a bid protest with GAO does.
As Table 4 illustrates, GAO receives far fewer requests for reconsideration than bid protests each
year, and GAO seldom changes its recommendations upon reconsideration.129
Table 4. Comparative Number of Requests for Reconsideration and Protests
Received and Closed by GAO Per Fiscal Year
(2001-2014)
Protests
Reconsideration Requests
Fiscal Year
Received Closed Received Closed
2001 1084
1040
62
58
2002 1139
1072
65
61
2003 1269
1181
83
63
2004 1387
1334
98
71
2005 1285
1285
71
56
2006 1270
1224
57
50
2007 1318
1300
93
93
2008 1563
1506
89
71
2009 1898
1822
91
96

124 Metzger & Lyons, supra note 46, at 1232, 1248. GAO, in contrast, will not hear protests that have been the subject
of litigation or have been decided on the merits by a court of competent jurisdiction. 4 C.F.R. §21.11(b).
125 4 C.F.R. §21.14(a).
126 4 C.F.R. §21.14(b).
127 4 C.F.R. §21.14(a).
128 4 C.F.R. §21.14(c).
129 See, e.g., Jerome S. Gabig, Jr., Fighting over Government Contracts, 66 ALA. L. REV. 39, 42 (2005).
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Protests
Reconsideration Requests
Fiscal Year
Received Closed Received Closed
2010 2299
2226
79
94
2011 2286
2219
72
73
2012 2339
2371
89
84
2013 2298
2389
75
86
2014 2445
2458
66
58
Source: Congressional Research Service using data from GAO.
“Appeal” of GAO Decisions
In addition to requesting reconsideration from GAO, disappointed protesters can effectively
“appeal” GAO’s decisions to the Court of Federal Claims by filing suit alleging that the agency’s
procurement activities were “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law” in violation of the Administrative Procedure Act (APA).130 The focus of
the suit in the Court of Federal Claims is the agency’s procurement activities, not GAO’s decision
per se. However, GAO’s decision makes up part of the agency record that is reviewed by the
Court of Federal Claims,131 and the Court of Federal Claims has historically given some
deference to GAO decisions on questions of fact.132
In reviewing the agency’s action, the court does not substitute its judgment for that of the
agency.133 Rather, it looks at the agency’s record of the procurement to determine whether the
procurement official’s decision lacked a rational basis, or the procurement procedure involved a
violation of law or procedure.134 In determining whether the procurement official’s decision had a
rational basis, the court considers whether (1) the agency relied on factors Congress did not
intend it to consider in making its decision; (2) failed to consider an important aspect of the

130 5 U.S.C. §706(2)(A); Superior Helicopter LLC, 78 Fed. Cl. at 186-87 (application of APA to agency procurement
activities). Not all bid protests in the Court of Federal Claims following GAO protests directly “appeal” GAO
decisions, however. In some cases, the protester makes a different argument in the Court of Federal Claims than it
made at GAO. See, e.g., J&H Reinforcing & Structural Erectors, Inc. v. United States, 50 Fed. Cl. 570 (2001). In other
cases, the GAO protest ended without a decision on merits from GAO. See, e.g., Ezenia!, Inc. v. United States, 80 Fed.
Cl. 60 (2007) (protester withdrew its GAO protest after filing suit in the Court of Federal Claims); Heritage of Am.,
LLC v. United States, 77 Fed. Cl. 66 (2007) (GAO protest dismissed as untimely).
131 31 U.S.C. §3556. Parties to bid protests at the Court of Federal Claims are not strictly limited to the administrative
record from the agency or GAO. They can move to supplement the record, and the court will typically grant such
motions when the “record does not contain sufficient information for the court to render a decision.” Comp. Health
Servs., Inc. v. United States, 70 Fed. Cl. 700, 720 (2006). This includes “fill[ing] gaps concerning the factors the
contracting officer considered in reaching his decision.” Precision Standard, Inc. v. United States, 69 Fed. Cl. 738, 745
(2006).
132 See, e.g., MTB Group v. United States, 65 Fed. Cl. 516 (2005). The Court of Federal Claims will affirm GAO on
questions of fact, or questions that must be answered by facts and evidence, or inferences therefrom, unless the GAO
decision is arbitrary, capricious, or so grossly erroneous as to imply bad faith. However, on questions of law, or
questions that must be answered by applying relevant legal principles, the Court of Federal Claims gives no deference
to GAO and conducts de novo review.
133 Bendix Field Eng’g Corp. v. United States, No. 91-2723, 1991 U.S. Dist. LEXIS 19778, at *6 (D.D.C. November
15, 1991).
134 Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).
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problem; or (3) offered an explanation for its action contrary to the evidence before it, or so
implausible it could not be ascribed to a difference of opinion or the product of agency
expertise.135
A Court of Federal Claims protest, even one “appealing” a prior GAO decision, does not trigger
an automatic stay of the agency’s award of the contract or authorization of performance under it.
Rather, a bid protester in the Court of Federal Claims must file and prevail upon a motion for a
temporary restraining order or preliminary injunction to effect a delay of the agency’s
procurement actions similar to that generally occurring automatically when a GAO protest is
filed.

Author Contact Information

Kate M. Manuel
Moshe Schwartz
Legislative Attorney
Specialist in Defense Acquisition
kmanuel@crs.loc.gov, 7-4477
mschwartz@crs.loc.gov, 7-1463



135 Alion Science & Tech. Corp. v. United States, 69 Fed. Cl. 14, 25 (2005) (quoting Motor Vehicle Mfrs. Ass’n of the
United States v. State Farm Ins. Co., 463 U.S. 29, 43 (1983)).
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